D.C. Circuit Review – Reviewed: Resolved 2018

Something unexpected happened last Saturday night. I was hard at work — true story, grading exams — in my home when the clock struck midnight. At that moment I heard fireworks! And it was not just from one house. I was more than a little puzzled. Who in the world would launch fireworks to celebrate the calendar turning over from December 30th to December 31st? And why? But then I remembered where I now live: Provo, Utah. What does that have to do with anything? Well, Provo is very much a church-going town, and — though there are differences of opinion on the subject — a good chunk of its citizens prefer not to host big festive parties on Sundays. So here’s my hunch: More than one “New Year’s” party was held on Saturday night.*

Why am I telling this story? Because it demonstrates that “New Year’s Day is, in a sense, a silly holiday.” Or at least it is an arbitrary holiday; why celebrate January 1st rather than another day? “Okay,” you say, “New Year’s Day is an arbitrary holiday; why does that matter?” Because it explains why I feel comfortable offering my New Year’s resolutions on January 5th rather than the 1st. It’s arbitrary anyway. That said, recall that “arbitrary does not mean capricious” — it is important to pay attention to the passage of time, even if the day we do it doesn’t matter.

So it is time to review how we did with our resolutions. Last year, I re–resolved to write an op-ed for the Wall Street Journal. I’m going to stop making that resolution. Again, I failed. Indeed, I didn’t even try! (On the other hand, I did write a report for the Administrative Conference of the United States. I’m sure it will be just as widely read.) So if the Wall Street Journal is out, what’s my new resolution? Not to grade exams at midnight on a Saturday night. I’m a big fan of boring, but that pushes it a bit too far even for me.

I have resolutions for the D.C. Circuit too. The Court issued no opinions this week; by contrast, in just one week in July, the Court issued 417 pages’ worth of opinions. So in 2018, the Court should resolve to better spread out the work — and, if possible, to write shorter opinions! The Court should also resolve to decide PHH Corp. v. CFPB soon; lots of folks are waiting. The Court — especially its clerks — should resolve to read this short book; history matters. The Court should also resolve to keep making its oral arguments easily accessible. And D.C. Circuit litigants should resolve to update their “appellate filer account[s].”

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone.
Follow him on Twitter @Aaron_L_Nielson.